Is Section 288.5 of the California Penal Code applicable to a resident who sexually molests a minor?

Section 288.5 was expressly enacted to enable significant penalties against a resident child molester easier to impose. (People v. Johnson (1995) 40 Cal.App.4th 24, 26, 46 Cal.Rptr.2d 838.) In pertinent part, section 288.5, subdivision (a) provides: "Any person who ... resides in the same home with the minor child [and] who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct ... as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct under Section 288, with a child under the age of 14 ... is guilty of the offense of continuous sexual abuse[.]" Subdivision (b) of section 288.5 provides: "To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number."

As appellant concedes, various cases have upheld the validity of section 288.5 under the state Constitution in the face of a challenge based on the [54 Cal.App.4th 207] lack of a jury unanimity requirement as to the specific acts. (See, e.g., People v. Whitham (1995) 38 Cal.App.4th 1282, 1295, 1297, 45 Cal.Rptr.2d 571.) He urges, however, that under the federal Constitution such unanimity requirement is mandated. We disagree.